Winten v. State

• Decision Date: 15 December 1890
• Citation: 8 So. 556,90 Ala. 637
• Parties: WINTEN v. STATE.
• Court: Alabama Supreme Court

8 So. 556

90 Ala. 637

WINTEN v. STATE.

Supreme Court of Alabama

December 15, 1890

Appeal from circuit court, Cherokee county; JOHN B. TALLY, Judge.

The indictment was: "The grand jury of said county charge that, before the finding of this indictment, J. H. Winten whose true Christian name is unknown to said grand jury otherwise than as stated, did sell spirituous liquors without a license," etc.

Jo. A. Walden, for appellant.

W L. Martin, Atty. Gen., for the State.

CLOPTON J.

In Gerrish v. State, 53 Ala. 476, it was ruled that it is not allowable to designate in an indictment the person charged therein with the commission of a criminal offense, by the initial letters of his name, when his true name is known; and that an indictment so designating him is subject to plea in abatement, unless it also avers that the true name is otherwise unknown to the grand jury. But, notwithstanding the indictment, which designates appellant by the initial letters of his Christian name, contains the requisite averment that his true Christian name is otherwise unknown to the grand jury, which renders it sufficient on its face,-not subject to plea in abatement,-he may escape conviction by proving on the trial the falsity of the averment. It becomes a question of variance beween averment and proof, and, if the evidence adduced shows that his true name was in fact known to the grand jury, a conviction cannot be had on the indictment. It was so held in Duvall v. State, 63 Ala. 13, where it is said: "One rule is clearly declared in all the cases,-that, when a fact or name is known or proved to the grand jury, there is no warrant in the law for averring such fact or name is unknown. Such form of averment may be supposed to give greater latitude of proof, but, when it appears on the trial that the fact or name was known, a conviction on such indictment should not be allowed." This rule was reasserted in respect to an averment that the name was unknown in the case of Wells v. State, 88 Ala. 239, 7 South. Rep. 272, and it may be regarded as settled that, when the defendant shows that his true name was known to the grand jury, the indictment will not support a conviction. The evidence of the witness introduced by the state to prove the commission of the offense shows that the Christian name of defendant was proved and known to the grand jury. Such being the evidence, the court erred in giving the general affirmative charge...